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Before the
Federal Communications Commission
Washington, D.C. 20554
)
In the Matter of
)
KITZ Radio Inc. File No. EB-06-ST-119
)
Licensee of KGTK (AM) NAL/Acct. No. 200632980005
)
Olympia, WA FRN: 0003791456
)
Facility ID No. 47567
)
FORFEITURE ORDER
Adopted: June 15, 2007 Released: June 19, 2007
By the Regional Director, Western Region, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order ("Order"), we issue a monetary forfeiture in
the amount of two thousand, four hundred dollars ($2,400) to KITZ
Radio, Inc. ("KITZ Radio"), licensee of station KGTK(AM) in Olympia,
Washington, for willfully and repeatedly violating Section 73.3526 of
the Commission's Rules ("Rules"). On September 1, 2006, the
Enforcement Bureau's Seattle Office issued a Notice of Apparent
Liability for Forfeiture ("NAL") in the amount of $4,000 to KITZ Radio
for failing to maintain a complete public inspection file for
KGTK(AM). In this Order, we consider KITZ Radio's arguments that the
facts as described in the NAL are incorrect; that it did not have a
current license to operate the station to show to the Seattle agent,
and that the amount of the forfeiture should be reduced consistent
with similar cases and because of its history of compliance with the
Commission's Rules, as well as its good faith efforts to comply with
the Rules.
II. BACKGROUND
2. In the NAL, the Seattle Office stated that on May 24, 2006, an agent
of the Enforcement Bureau's Seattle Office conducted an inspection of
the public inspection file for KGTK(AM) at Mile Hill Dr., Suite 201A,
Port Orchard, Washington. While examining the public inspection file,
the agent observed that the KGTK(AM) public inspection file was not
complete. Specifically, there were no copies of the current FCC
authorization to operate the station and no radio issues/programs
lists for calendar years 2005 or 2006. During the inspection the
Seattle agent interviewed the station's general manager concerning the
missing items. The general manager indicated that he did not know why
these items were missing.
3. Because the license period for radio stations in the State of
Washington ended on February 1, 2006, KITZ Radio was required to file
a renewal application for KGTK(AM) with the Commission no later than
October 1, 2005, as required by Section 73.3539(a) of the Rules. A
search of Commission's records by the Seattle agent revealed KITZ
Radio did file a timely renewal application, however, as of the date
of the NAL, the renewal application remained pending.
4. On August 23, 2006, the Seattle Office issued a NAL in the amount of
$4,000 to KITZ Radio, finding that KITZ Radio apparently willfully and
repeatedly failed to maintain a complete public inspection file for
KGTK(AM). KITZ Radio filed a response ("Response") on September 8,
2006, arguing that the facts as described in the NAL are incorrect;
that it did not have a current license to operate the station to show
to the Seattle agent; and that the amount of the forfeiture should be
reduced consistent with similar cases, and because of KITZ Radio's
history of compliance with the Commission's Rules, as well as its good
faith efforts to comply with the Rules.
III. DISCUSSION
5. The proposed forfeiture amount in this case was assessed in accordance
with Section 503(b) of the Act, Section 1.80 of the Rules, and The
Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines ("Forfeiture
Policy Statement"). In examining KITZ Radio's response, Section 503(b)
of the Act requires that the Commission take into account the nature,
circumstances, extent and gravity of the violation and, with respect
to the violator, the degree of culpability, any history of prior
offenses, ability to pay, and other such matters as justice may
require.
6. Section 73.3526(a)(2) of the Rules requires that every licensee of an
AM station licensee shall maintain a public inspection file containing
the material, relating to that station, described in paragraphs (e)(1)
through (e)(10) and paragraphs (e)(12) through (e)(14) of this section
as well as paragraph (e)(16) of this section. Further, as required by
Section 73.3526(b), the location of the public file shall be
maintained at the station's main studio location.
7. Section 73.3526(e)(1) of the Rules requires licensees to place in
their public inspection file a copy of the current FCC authorization
to operate the station. These materials shall be retained until
replaced by a new authorization. During the examination of the file on
May 24, 2006, no copy of the KGTK(AM) station authorization was found.
8. Section 73.3526(e)(12) of the Rules requires AM and FM broadcast
licensees to place in their public inspection file, for each calendar
quarter, a list of programs that have provided the station's most
significant treatment of community issues during the preceding three
month period. This list is known as the radio issues/programs list.
Copies of the lists must be maintained in the file until final action
has been taken on the station's next renewal application. During the
examination of the file on May 24, 2006, KGTK(AM)'s public inspection
file contained no radio issues/programs lists for calendar year 2005
or 2006.
9. KITZ Radio first argues that the facts detailed in the NAL are
incorrect because the Seattle agent first inspected the KGTK(AM)
public inspection file on May 19, 2006. On that day, KITZ Radio
acknowledges that the administrative assistant who was present at the
main studio was unable to locate the most recent set of the
issues/programs lists and arranged for the Seattle agent to return to
complete his inspection. KITZ Radio argues that when the agent
returned on May 24, 2006, the KGTK(AM) general manager showed the
agent the all the "required complete issues/programs lists." KITZ
Radio concludes that the station's only "lapse was the temporary
absence of the lists for the most recent five quarters during the
agent's first visit to the stations, a lapse which was promptly
rectified."
10. We acknowledge that the Seattle agent did visit the KGTK(AM) main
studio on May 19, 2006, and that this fact should have been detailed
in the NAL. However, the Seattle Office did not mistakenly base its
findings on the Seattle agent's May 19, 2006, inspection. Although the
complete file should have been available for "public inspection at any
time during regular business hours," the Seattle agent agreed to
return to conduct a full inspection given the inability of the
KGTK(AM) staff to produce the complete public inspection file. The
public inspection file which the Seattle agent was presented with on
May 24, 2006, is the public inspection file described in the NAL. The
files identified and presented to the agent for inspection as the
issues/programs lists contained undated public service announcements
and appropriate issues/programs list for 2004 and prior years of the
license term. But there were no similar issues/programs lists compiled
for 2005 or 2006 in the public inspection file. Weighing this evidence
against the general manager's affidavit, we find that while KGTK(AM)
apparently produced some information in the issues/programs list file,
i.e., updated public service announcements that may have fallen within
the time frame of the five quarters prior to the Seattle agent's
inspection, this information did not fulfill the requirements of
Section 73.3526(e)(12), on either May 19, 2006 or May 24, 2006. We
note, as the Seattle Office did in the NAL, that where lapses occur in
maintaining the public inspection file, neither the negligent acts nor
omissions of station employees or agents, nor the subsequent remedial
actions undertaken by the licensee, excuse or nullify a licensee's
rule violation. However, it appears that KITZ Radio did make a good
faith albeit incomplete effort to comply with Section 73.3526(e)(12)
by maintaining some of the items required for the issues/programs
lists. Consequently, we reduce the forfeiture amount to $3200.
11. KITZ Radio also argues that it was unable to produce it current
authorization because the general manager assumed that the agent
"meant licenses that reflected a period of validity that include the
current (May 24, 2006) date." A timely renewal application was filed
for KGTK(AM), but the general manger "assumed that there were no
station licenses, as the prior ones had expired and the renewed ones
had not yet been issued." We are not persuaded by KITZ Radio's
argument. Section 1.62(a)(1) of the Rules states "[w]here there is
pending before the Commission at the time of expiration of license any
proper and timely application for renewal of license with respect to
any activity of a continuing nature . . ., such license shall continue
in effect without further action by the commission until such time as
the Commission shall make a determination with respect to the renewal
application." Until action is taken on the KGTK(AM) pending renewal
application, KGTK(AM)'s recently expired license is its most current
authorization to operate the station. KITZ Radio acknowledges that
while it has a copy of the recently expired KGTK(AM) license, it did
not produce it to the Seattle agent for inspection.
12. KITZ Radio also argues that the forfeiture amount should be reduced
consistent with the Media Bureau's decision in Trustees of Davidson
College, in which a $9,000 forfeiture concerning three years of
missing issues/programs lists was reduced to $1,000. The Davidson
College case is not dispositive in this case. We first note that the
Davidson College case involved a violation of Section 73.3527 of the
Rules and the violation was self-reported by the licensee.
Additionally, the Media Bureau concluded that the missing
issues/programs lists were missing for eight months, rather than for
three years. In the present case, the violations were discovered by a
Seattle agent during an inspection of the licensee's public inspection
file. In similar situations, we have proposed and imposed forfeitures
of at least $4,000 to the licensee.
13. Finally, KITZ Radio argues that it has an overall history of
compliance with the Commission's Rules. We have reviewed our records
and we concur. Consequently, we further reduce KITZ Radio's forfeiture
amount to $2,400.
14. Based on the information before us, having examined it according to
the statutory factors above, and in conjunction with the Forfeiture
Policy Statement, we find that reduction of the proposed forfeiture to
$2,400 is warranted.
IV. ORDERING CLAUSES
15. ACCORDINGLY, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended ("Act"), and Sections 0.111,
0.311 and 1.80(f)(4) of the Commission's Rules, KITZ Radio, Inc., IS
LIABLE FOR A MONETARY FORFEITURE in the amount of $2,400 for willfully
and repeatedly violating Section 73.3526 of the Rules.
16. Payment of the forfeiture shall be made in the manner provided for in
Section 1.80 of the Rules within 30 days of the release of this Order.
If the forfeiture is not paid within the period specified, the case
may be referred to the Department of Justice for collection pursuant
to Section 504(a) of the Act. Payment of the forfeiture must be made
by check or similar instrument, payable to the order of the Federal
Communications Commission. The payment must include the NAL/Acct. No.
and FRN No. referenced above. Payment by check or money order may be
mailed to Federal Communications Commission, P.O.
Box 358340, Pittsburgh, PA 15251-8340. Payment by overnight mail may
be sent to Mellon Bank /LB 358340, 500 Ross Street, Room 1540670,
Pittsburgh, PA 15251. Payment by wire transfer may be made to ABA
Number 043000261, receiving bank Mellon Bank, and account number 911-
6106. Requests for full payment under an installment plan should be
sent to: Associate Managing Director - Financial Operations, Room
1A625, 445 12th Street, S.W., Washington, D.C. 20554.
17. IT IS FURTHER ORDERED that a copy of this Order shall be sent by First
Class Mail and Certified Mail Return Receipt Requested to KITZ Radio,
Inc., at its address of record.
FEDERAL COMMUNICATIONS COMMISSION
Rebecca L. Dorch
Regional Director, Western Region
Enforcement Bureau
47 C.F.R. S 73.3526.
Notice of Apparent Liability for Forfeiture, NAL/Acct. No. 200632980005
(Enf. Bur., Western Region, Seattle Office, released September 1, 2006).
The file contained complete issues/programs lists for the license term up
to and including calendar year 2004, and undated lists of public service
announcements.
47 C.F.R. S 73.1020(a) and (a)(15)(i).
47 C.F.R. S 73.3539(a).
See File No. BR - 20050930AIZ, filed September 30, 2005 ("Broadcast
Renewal Application").
We note that the KGTK(AM) Broadcast Renewal Application remains pending as
of the date of this Order.
47 U.S.C. S 503(b).
47 C.F.R. S 1.80.
12 FCC Rcd 17087 (1997), recon. denied, 15 FCC Rcd 303 (1999).
47 U.S.C. S 503(b)(2)(E).
47 C.F.R. S 73.3526(a)(2).
47 C.F.R. S 73.3526(b).
47 C.F.R. S 73.3526(e)(1).
47 C.F.R. S 73.3526(e)(12).
47 C.F.R. S 73.3526(b).
NAL at para. 2 n. 3.
KITZ Radio also notes that its certification regarding the completeness of
the KGTK(AM) public inspection file in the KGTK(AM) renewal application
should no longer be in dispute. We note that the review of that
application is not before this bureau.
See Padre Serra Communications, Inc., 14 FCC Rcd 9709 (1999) (citing
Gaffney Broadcasting, Inc., 23 FCC 2d 912, 913 (1970) and Eleven Ten
Broadcasting Corp., 33 FCC 706 (1962)). As subsequent inspection conducted
by a Seattle agent after the issuance of the NAL revealed that the
complete issues/programs list had been placed in the public inspection
file.
47 C.F.R. S 1.60(a)(1).
20 FCC Rcd 17190 (MB 2005).
See, e.g., Wilson Broadcasting, Inc., DA 07-1780, 2007 WL 1185895 (rel.
April 23, 2007); New Life Broadcasting, Inc. 21 FCC Rcd 8641 (EB 2006).
47 U.S.C. S 503(b), 47 C.F.R. SS 0.111, 0.311, 1.80(f)(4), 73.3526.
47 U.S.C. S 504(a).
See 47 C.F.R. S 1.1914.
Federal Communications Commission DA 07-2659
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Federal Communications Commission DA 07-2659